In the Matter of the Application of New Ulm Public Utilities Commission for a Large Wind Energy Conversion System Site Permit for the New Ulm Wind Project in Nicollet County

A Minnesota regulation imposed wind-access buffers on wind-project developers, requiring the developers to place wind turbines a certain minimum distance away from the boundaries of the developers’ sites. The required distance was based on the rotor diameter of the turbines used in the development. Specifically, the regulation required a setback of five rotor diameters from all boundaries of the developer’s site on the predominant wind axis and a setback of three rotor diameters from all boundaries on the secondary wind axis. In May 2009, the New Ulm Public Utilities Commission (NUPUC) (plaintiff) applied to the Minnesota Public Utilities Commission (the commission) for a permit to build and operate a 10.5-megawatt wind project in Nicollet County, Minnesota. NUPUC requested a variance from the wind-access buffer setback. NUPUC explained that it had leased three plots of land for the wind-development project, which were chosen because the plots contained high points that were better suited for placing wind turbines than any of the lower-lying surrounding lands. NUPUC asserted that a variance was appropriate because the economic and technological realities of wind development made it unlikely that any of the land in the setback-affected areas with wind resources that were not under NUPUC’s control would ever be used for a wind-energy conversion system. Several adjacent property owners filed public comments indicating that they might be open to future wind development on their properties but that the property owners were opposed to having development forced on them by New Ulm. The Minnesota Department of Commerce’s Office of Energy Security (OES) urged the commission to deny the variance, asserting that a waiver would be inconsistent with the state’s interest in ensuring that large wind-development projects were sited in accordance with statutory standards for environmental preservation, sustainable development, and efficient use of resources. The OES also asserted that waiving the setbacks would not protect possible future wind development and force the commission to determine whether all landowners’ wind rights should be treated equally.